The opinion of the court was delivered by: Coleman, J.
Argued September 10, 2001
On certification to the Superior Court, Law Division, Mercer County.
The issue raised in this appeal is whether the police, under the plain view doctrine, were lawfully in a viewing area and whether they had probable cause to believe that a "light-colored" object which they observed in defendant's hand as defendant placed the object into a hole beside a post on the porch of a multi-family dwelling was contraband. The object was ultimately determined to be a clear plastic bag containing narcotics. On defendant's motion, the evidence taken from the porch was suppressed. The State appealed, and a divided Appellate Division affirmed in an unpublished opinion. The dissenting member of the panel found that the police officer's conduct was reasonable under the totality of the circumstances. The State appealed as of right based on the dissent. We hold that all of the elements of the plain view doctrine were satisfied. Hence, we reverse the order suppressing the evidence.
At 11:00 p.m. on June 11, 1998, Officer Steven Elliot Wilson, a member of the Trenton Police Department's Pro-Active Unit, was on patrol in a marked police vehicle in the 600 block of Martin Luther King Boulevard in the City of Trenton. The assignment for the Pro-Active Unit was to target drug violations, prostitution and violations of city ordinances. A black male in his 30s approached Officer Wilson, identified himself as an "area resident," and said he wanted to remain anonymous. That individual told Officer Wilson that for approximately one hour he had personally observed a black male named "Drew" in the area of 695 Martin Luther King Boulevard "selling crack cocaine in small zip-lock baggies."
Officer Wilson knew that the particular area of Martin Luther King Boulevard described by the informant was a "high drug area." It was also designated as a "zero tolerance" zone, which is an area designated by the Trenton Chief of Police as an area in which there is a high volume of both drug and city ordinance violations. The address, 695 Martin Luther King Boulevard, was an attached row house with multiple apartments and a porch. The steps leading up to the porch had posts on either side.
Within one or two minutes after speaking with the citizen informant, Officer Wilson arrived at the house. As Officer Wilson and his partner pulled their marked patrol car up in front of 695 Martin Luther King Boulevard, they heard someone shout, "Five-O," a signal used to alert people to police presence. Officer Wilson illuminated the porch area of 695 Martin Luther King Boulevard with the patrol car's right-side alley light. His partner simultaneously shined a hand-held spotlight on the same porch. Officer Wilson was able to see defendant seated on the top steps and four other people on the porch. Officer Wilson recognized defendant from a past narcotics investigation.
After someone shouted "Five-O", Officer Wilson observed the people on the porch slowly move toward the entrance to the house. By the artificial illumination, he also observed defendant slowly place an object with his right hand near a support post for the overhanging porch roof that was immediately to defendant's right. Officer Wilson described the object as "light-colored." Officer Wilson then exited the patrol car and ordered defendant to come down the steps and assume the frisk position by the police car. Whether defendant was actually frisked or just ordered to assume the frisk position is unclear from the record. In any event, at that point Officer Wilson did not intend to permit defendant to leave the area. He believed that defendant was attempting to conceal narcotics when he placed the light-colored object beside the post.
Officer Wilson then climbed the steps and used his flashlight to further illuminate the porch and the area where he had seen defendant place the light-colored object. With the illumination provided by the alley light and the hand-held spotlight, Officer Wilson saw that there was a hole a few inches deep at the base of the post where the wood had rotted away. While directing the beam of his flashlight into the hole beside the post, Officer Wilson retrieved the "light-colored" object from the hole beside the post. From the time Wilson walked up the steps he never lost sight of the post where the object was seized. After retrieving the object, but before opening the container, he believed it to be "crack cocaine packaged" apparently for street distribution. Wilson formally placed defendant under arrest following seizure of the object. In a search of defendant's person incident to the arrest, Officer Wilson found $381 "in assorted U.S. currency."
Defendant was indicted for possession of a controlled dangerous substance, in violation of N.J.S.A. 2C:35-10a(1), possession of a controlled dangerous substance with intent to distribute, in violation of N.J.S.A. 2C:35-5a(1), and possession of a controlled dangerous substance with intent to distribute within 1,000 feet of school property, in violation of N.J.S.A. 2C:35-7.
Prior to trial, defendant filed a motion pursuant to Rule 3:5-7 to suppress the evidence seized from beside the post and from his person. At the suppression hearing, the motion judge asked Officer Wilson: "When you shined your flashlight, what did you see with the beam of the flashlight illuminating?" Wilson answered: "I saw the package of suspected CDS right there." The motion judge further asked: "Is that what it appeared to you?" Wilson answered: "Yes." The prosecutor also asked Wilson: "Based on all of the circumstances that you were faced with at the time that you saw Mr. Johnson stuffing an unknown object into the hole, what did you believe was going on?" Wilson answered: "I believed he was attempting to conceal narcotics." In response to a question propounded by defense counsel, Officer Wilson stated that a zip-lock baggie is often used as a container for crack cocaine.
The trial court found Officer Wilson's testimony completely credible and adopted his testimony as the factual underpinning for the court's decision. In finding the officer's testimony to be credible, the trial court stated he "was direct, to the point, and very factual. . . . He appeared to be testifying from his recollection, without embellishing, giving it in a very straightforward, direct manner. He was responsive to questioning, and indeed he was very thoughtful in his responses, in a very credible way."
The trial court considered and rejected the plain view exception to the warrant requirement. The court stated:
I do not believe . . . this is a plain-view case. It seems like it is, or should be, or could be, but the more I think about it, and I thought about it a lot, I don't see it to be that. I don't see it to be similar, either, to a case cited by the State, and that is the matter of State v. Ford, 278 N.J. Super. 351, a 1995 Appellate Division decision. There is a fair amount of language in Ford that appears to apply to this case, but based upon my analysis of Ford, I don't think so.
Unlike the Ford case, there was no police observation of the defendant engaging in narcotics transactions alone or with others, as was the situation in Ford. There was no observation or recognition of the object, it was simply a white object, a white object that could be anything. It wasn't even plastic. If it were plastic, the court might be persuaded in some way differently, but the truthful testimony from this very credible officer was, it was something white that the defendant did what, slowly placed on the ground. You don't have the furtive movement; we don't have the quick actions; we don't have the secreting of something, the stuffing of something, the hiding of something. All of those words, those descriptions that we see often are, are absent here.
The trial court also considered and rejected whether probable cause existed at the time of defendant's arrest that would validate a search incident to that arrest, and whether probable cause existed to search the porch based on exigent circumstances. In rejecting those exceptions to the warrant requirement, the court stated:
The critical aspects are, from the State's perspective, as noted in the briefing and argument as well, there was an area resident who had information concerning Drew Johnson. Veracity is to be assumed in such a situation. There was a fair amount of information that was given there, not great specificity, but significant information to warrant further police action, which is exactly what happened.
In my judgment, the police officer certainly had grounds at the time, based upon a reasonable suspicion, to speak to the defendant, to undertake an investigatory stop of the defendant, to approach the defendant, things of that nature. He avoided that step, he missed that step. He was prompted to immediate action, and he so testified, to an immediate arrest and frisking of the defendant, and then a search of the area. It was the search of the area with the flashlight on the porch itself, that first gave rise to the recognition that it was CDS that the defendant had, or it certainly appeared to be CDS at the time.
In [this] case we don't have . . . ample probable cause; at best you might say there is negligible probable cause, but not enough, in this court's judgment, to reach the standard that is [required] to [satisfy] the state's burden. And here, we also don't even know what that bag is or what that object is. In the Ford case it was very clear evidence with regard to it. . . . Under all of the circumstances presented, once again, I'm satisfied the state has not met its burden.
After granting the State leave to appeal, a divided Appellate Division panel affirmed the suppression order. In the majority's view, even to the extent the informant's tip was confirmed by the police officers' observations when they came upon the scene, there was not enough in what they saw to establish that criminal activity was afoot. The majority acknowledged, however, that suppression of the evidence would have been inappropriate if the police had witnessed any overt acts by defendant to suggest that he was involved in drug trafficking activity. The majority also rejected the State's argument that defendant abandoned the cocaine, but implied that it might have ruled differently if the contraband had been placed a sufficient distance from where defendant was sitting to separate it from his person.
The dissenting member on the appellate panel found that the police conduct was totally reasonable under the totality of the circumstances. As a preliminary matter, the dissent noted that the Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution provide a guarantee only against unreasonable searches and seizures. The dissent also argued that probable cause existed based on the totality of the circumstances and that there was no search because the police did not invade an area in which defendant had a reasonable expectation of privacy.
After this Court denied the State's motion for leave to appeal, the indictment was dismissed because the State was unable to prosecute its case in light of the suppression order. The State appealed as of right, based on the dissent, pursuant to Rule 2:2-1(a)(2).
Based on our review of the record and some of the trial court's factual findings, there exists some uncertainty concerning whether the evidence that was seized from the hole beside the post had been observed by the trial court despite the failure of the testimonial evidence to describe what was seized. For example, at one point the trial court found that when Officer Wilson looked into the hole beside the post, "he saw a package, . . . and in the package was a number of decks or a number of baggies of crack – - of cocaine of some kind." At another point, the trial court found "[t]here was no observation or recognition of the object." The trial court also described the container as a "white object, a white object that could be anything. It wasn't even plastic." Because those findings are not based on any evidentiary support in the record, we remanded the matter to the trial court to supplement the record so that we could properly perform our judicial review.
On the remand, we directed the trial court "to conduct a conference with counsel for the State and for the defense, on the record, to specify the nature, size and color of the bag and its contents seized by the police" from the hole beside the post. The trial court stated that the evidence was not produced at the original suppression hearing. The court observed the evidence on remand and described it as
a clear plastic-like bag, of thin texture, containing fifteen one-half inch by three- quarter inch pink plastic baggies, each of which contain [sic] a tan or a cream colored substance. The bag is soft and wrinkled making it difficult to discern the contained baggies. . . . [I]t is estimated that its dimensions approximate two inches by two and one-half to three inches. . . . At a distance of a few feet it would be reasonable to describe the bag and its contents as simply a "light colored object."
We will utilize that additional information in our decision.
The State, through the Mercer County Prosecutor, argues that the police were lawfully on the porch when defendant was observed making a furtive gesture toward the pole and that probable cause existed to search the area of the pole and seize what the police suspected were drugs placed there by defendant. Finally, the State argues that defendant abandoned the drugs once he placed ...